Can a New York Employer Discriminate Against Me Based on a "Perceived" Disability?

Home > Blog > 2017 > June > Can a New York Employer Discriminate Against Me Based on a "Perceived" Disability?

Jun 19, 2017

Can a New York Employer Discriminate Against Me Based on a "Perceived" Disability?

Posted By
Mahir Nisar Attorney at Law

Disability discrimination laws protect individuals from unfavorable employment action based solely
on a physical or mental impairment. Not every disability is protected
under law. What about a situation in which an employer incorrectly assumes
an employee has a protected disability and fires him or her? Put another
way, can employees sue for disability discrimination when they do not
have actual disabilities? New York State's highest court may soon
answer these questions with respect to one common disability.

NYPD Fights Discrimination Verdict Based on False Alcoholism Charges

Two former New York City police officers sued the city after they were
referred to the NYPD's substance abuse program. As it turned out,
the officers' respective former partners falsely told the NYPD they
were alcoholics. Nevertheless, the officers were incorrectly diagnosed
as alcoholics and ordered to undergo further treatment by the Department.

The officers later sued for disability discrimination. Among other reasons,
the officers cited New York City Human Rights Law, which broadly prohibits
employment discrimination based on an “actual or perceived”
disability. While that would seem to apply the officers' complaint,
as they were disciplined based on “perceived” alcoholism,
the Human Rights Law restricts the “disability” of alcoholism
to an individual who is “recovering or has recovered” and
currently “free of such abuse.”

The city argued this narrower definition excluded the officers' claims
because they were perceived to be “untreated” alcoholics,
which is not covered by the law. The trial court rejected this argument.
A jury ultimately ruled in favor of the officers' Human Rights Law
claim and awarded damages. The city then appealed to the U.S. Second Circuit
Court of Appeals.

The Second Circuit is a federal court, but it must apply New York law to
the facts of this case. The problem here, the Second Circuit said in a
May 22 order, was that New York law was not clear on this issue. The Court noted the
New York City Council intended to provide city employees with all of the
same employment discrimination protections as exist under state and federal
law. And both state and federal law “prohibit discrimination on
the basis of a perceived impairment,” and neither limits their application
to “recovering or recovered alcoholics.”

However, the “plain text” of the Human Rights Law seems to
exclude the officers' claims. Given that the Second Circuit could
find no case in New York law that directly addressed this scenario, the
Court opted to ask the New York Court of Appeals to address the matter.
Federal courts often “certify” questions of state law to state
courts. Here, the Second Circuit has asked the New York Court of Appeals
to determine whether the Human Rights Law prevents a covered employee
“from bringing a disability discrimination claim based solely on
a perception of untreated alcoholism?”

Standing Up Against Disability Discrimination in New York

If you have been the victim of disability discrimination, it is important
to stand up for your legal rights. As the case above illustrates, the
law in this area can get quite complicated. An experienced
New York employment law attorney can guide you through the process. Contact the Law Offices of Mahir S.
Nisar in New York City or Long Island if you need to speak with a disability
discrimination lawyer today.